SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CR-19-40000231-0000

DATE: 20191015

RE: Her majesty the queen, Respondent

AND:

Kimyhel tewolde, Applicant

BEFORE: S.F. Dunphy J.

COUNSEL: Daniel De Santis, for the Respondent Crown

Brian Irvine, for the Applicant

HEARD at Toronto: September 23, 24, and 25, 2019

REASONS FOR DECISION ON VOIR DIRE

[1] Mr. Tewolde brought this application for an order pursuant to s. 24(2) of the Charter excluding from evidence at his trial certain narcotics and a loaded firearm. These were found in a warrantless search of his backpack that took place in his bedroom and a search of his person incidental to his arrest thereafter. The search of the bag was undertaken by his mother in the presence of police and, allegedly, at their direction. The searches are claimed to have been conducted in violation of the right of the accused to be secure from unreasonable search and seizure guaranteed by s. 8 of the Charter and at a time when the accused was being unlawfully detained contrary to s. 9 of the Charter. Breaches of ss. 7 and 10 of the Charter are also alleged.

[2] By agreement, the trial and voir dire proceeded on a blended basis. The only viva voce evidence on the voir dire was that of the two attending officers and the mother of the accused who invited them inside. Each of these witnesses were called by the Crown. The defence tendered no evidence.

Facts

(a) General comments regarding credibility findings

[3] There being conflicting accounts of some of the crucial facts required to decide this case, I think it appropriate to set forth at the outset the conclusions I have reached regarding credibility and my reasons for doing so.

[4] The two police officers who testified were largely consistent with each other, differing only in very minor ways. They refreshed their memory from notes made only a few hours after the incident. Both were vigorously cross-examined without any convincing reason to question their credibility emerging. The accounts they gave of the events witnessed by them were both credible and consistent with all of the other evidence including the main points of the evidence of the mother of the accused, Ms. Astier Araya up to the point of their arrival before the bedroom of the accused. Their testimony was dispassionate and disinterested. By contrast, I have concluded that the evidence of Ms. Araya is unreliable and that I cannot accept much of it, particularly as regards the events that transpired in the bedroom.

[5] I am of course wary of falling into the trap of allowing the task of fact-finding to devolve into a simple all-or-nothing credibility contest instead of a careful fact-by-fact inquiry. Indeed, despite all of my misgivings about much of Ms. Araya’s evidence, I do accept significant portions of it as regards events prior to her entry into the bedroom. However, I reject those portions of her evidence upon which the defence application most crucially depends and it is thus incumbent upon me to explain why.

[6] There is no dispute that it was Ms. Araya who actually searched the bag and it was also she who brought Officer Simpson back to the house to participate in a confrontation she very much wanted to have with her son about his marijuana use. Ms. Araya’s evidence is the only evidence that suggests that Officer Simpson was not expressly invited into the house or the bedroom and it is her evidence alone that suggests that she may have acted as a state agent in opening and emptying the bag. Considering all of the evidence, I find myself unable to accept her evidence about either of these crucial matters.

[7] In so concluding, I do not wish to be taken as casting aspersions upon Ms. Araya or her good faith. I expect that she has over time managed to persuade herself that her testimony was accurate for the most part. I do not underestimate the strain these events has placed upon her. However, having listened carefully to her account and viewed it in the context of all of the other evidence, I have concluded that I must treat her evidence with caution and can only accept some portions of it. While I shall expand upon my reasons in respect of certain specific items of evidence, my conclusion arises from the following considerations:

a. Ms. Araya was clearly in a very emotional state at the time of the events in question. She agreed that she was distraught. She described her dispute with her son that day – the most recent in a series - as having made her “crazy” and angry. She described herself as shaking at certain points. She appeared “frantic” when she first approached Officer Simpson. She failed even to notice the presence of D.C. Perez Diaz who accompanied Officer Simpson through most of the events she recounted. There can be no question that her fraught emotional state during the events in question had a significant impact upon the quality and detail of her observations and what memory she has retained of them;

b. Ms. Araya’s anxious state was exacerbated by the events themselves. Instead of arranging for her son to receive a stern talking-to by police and possibly the removal of the personal stash of marijuana from his bag that she expected to find, her search of the backpack led to her son being arrested for trafficking in narcotics and for possession of a loaded handgun. By her own description, she fled from the room crying when she opened the bag;

c. Many of the details in her evidence before me were not contained in the statement given by her to police shortly after her son’s arrest whereas there was no suggestion that either officer departed materially from notes made by them only a few hours after the events;

d. The officers’ evidence about what happened in the bedroom was entirely consistent with Ms. Araya’s own account of what her initial intentions were when she first got into her car and sought out police shortly before 4:00 p.m. that day. She wanted to look inside the bag and was angry at her son for refusing to let her do so. She fully expected to find marijuana inside and wanted the police there to give him a stern talking-to when this happened. Neither she nor the police had any reason to expect the discoveries that were made when the bag’s contents were spilled by her;

e. Ms. Araya could not convincingly explain why she testified at trial that she did not want police present when the bag was opened after having brought them there with precisely that object in mind;

f. She said that she answered “of course” in response to the alleged command of Officer Simpson to open the bag - a response that confirms to some degree her original intent and is also consistent with police having gone no further than asking whether she intended to carry out her original object of opening the bag rather than issuing an imperative command to a reluctant agent;

g. Ms. Araya’s testimony at trial often appeared quite significantly open to suggestion, particularly on cross-examination by her son’s counsel. She seemed willing to contradict her earlier testimony and accept suggestions put to her although she would often then proceed to use entirely different words to express herself;

h. Some allowance must be made for her nervousness on the stand and her English language skills – she declined the offer of an interpreter but displayed occasional confusion in terms of understanding precisely what was being asked of her; and

i. Ms. Araya also appeared to me to be quite evasive on occasion, her evasiveness appearing to be designed to cast her son in a more favourable light. This was so particularly when answering questions about what precisely he told her when speaking in his own language to her in the presence of police and when describing what it was her son was actually doing (i.e. working or going to school) in that time frame.

[8] I also take note of the fact that Ms. Araya must feel a tremendous sense of responsibility for having set in train a series of events that has landed her son in considerable legal peril. She has been in almost daily contact with her son ever since. It is quite understandable that she should have persuaded herself over time of a version of events that might be more helpful to her son, allowing hindsight and her ardent wishes for her son to colour her memory over time.

[9] In summary, whether she knows that she was not telling me the truth or whether she has succeeded in persuading herself of a version of events that is not accurate matters less than the fact that I have concluded I cannot place reliance upon her account and that is indeed the conclusion I have reached.

[10] I turn now to review the facts that I have distilled from the evidence led before me.

(b) Detailed review of facts

(i) Living arrangements of Ms. Araya

[11] The living arrangements of Ms. Araya and her three children are somewhat complicated and warrant explanation. Ms. Araya has three children – the accused, Mr. Kimyhel Tewolde (21 years of age at the time of arrest on August 12, 2018), Nathaniel (age 17) and Fiona (age 15). Ms. Araya is not married to the father of her children, Mr. Teferi. It is quite unclear whether they are spouses of each other, although I do not find it necessary to decide that question. The three children live in a three bedroom detached house in North York with their father. Ms. Araya spends three or four nights a week at this house. As well, she comes to the house seven days a week to cook, clean and generally care for her three children both before and after her own work. She clearly had the run of the house. She was not excluded from the bedrooms of her children – to the contrary she made their beds from time to time.

[12] Ms. Araya’s job as a personal support worker keeps her busy six days per week with variable hours. She also keeps her own apartment (which is owned by Mr. Teferi) where she stays several nights per week as well. Mr. Teferi was not at home during the incidents relevant to this case.

[13] On these facts, I have no hesitation in finding that Ms. Araya was a resident of the North York home where her children lived. This was the family home, her children lived there and she was clearly an active, participating member of the family in that house. The nature of her relationship with Mr. Teferi was not explored by either side when she testified. However, whether or not the relationship is or was a spousal relationship, she was there caring for her children in every conceivable way on a daily basis and slept there several nights in a typical week. The family arrangements in this case may not be typical but they are not difficult to understand.

[14] I attach no relevance whatsoever to the existence of another apartment where she slept some nights in a week after she had cared for her children. For the purposes of this case – where her authority to introduce police into the family home is at issue – it matters not that she maintained two residences. It is sufficient that she was clothed with all of the authority of a resident at the North York home where the incidents occurred.

[15] At all events, it is clear that police had no knowledge of another residence of Ms. Araya prior to the arrest of Mr. Tewolde. She was clothed with every degree of the apparent authority of a mother of three children in the family home when she dealt with police that day. Police were entitled to rely upon her apparent authority.

(ii) Relationship with accused prior to August 12, 2018

[16] Ms. Araya clearly adores her children, including her eldest, the accused Mr. Kimyhel Tewolde. She is as devoted to them as fully and completely as any mother. However, in August 2018, there was a degree of conflict that had arisen in her relationship with the accused. Mr. Tewolde had been experiencing some health issues which she found very worrying. She had taken him to the hospital or to see a doctor on several occasions. She had also noticed that her son appeared to be using marijuana. His eyes were often red and the smell of marijuana was frequently present in the house. She strongly believed her son’s marijuana use was related to his precarious health situation. She was terrified that she might lose him. She very clearly wanted him to stop using and was convinced that this was a serious health concern. This was one significant source of conflict between them.

[17] Another source of conflict – and not unrelated – was Mr. Tewolde’s backpack. He was quite protective of his backpack and would not normally let his mother look inside it. He would tell her that he was over 18 and deny her requests to inspect it. Her repeated desire to search the backpack stemmed from her belief that he kept marijuana in it. She was not wrong as subsequent events revealed. Mothers seldom are.

(iii) Events of August 12, 2018

[18] Things came to a head on Sunday August 12, 2018. Ms. Tewolde was in the house. It being August, the two younger children were off school for the summer holidays. Her son Nathaniel was at work while Fiona was at home.

[19] It was quite unclear on her evidence what Mr. Tewolde was doing that summer in general or at all. She initially said that he was in high school finishing his grade full time at that time but later admitted that she was unsure. It is possible that he was attending classes at Yorkdale as she alleged or it is possible that he was not. While nothing in particular turns on this conclusion, this was one subject where I found her to be quite evasive in her answers. It appeared that she was attempting to paint her son in the best light even if her answers were only of very peripheral relevance.

[20] The bottom line is that there is no evidence that Mr. Tewolde was working at the time and Ms. Tewolde mentioned providing him money from time to time to buy things. He was clearly a dependent in the house. Whatever Mr. Tewolde did by way of occupation in August 2018, he was at home on that Sunday.

[21] Also in the house that day were Daniel, an adult cousin visiting from Vancouver, and her nephew Jonathan. Neither played a role in the events that were to follow.

[22] Ms. Araya asked her son to come with her to church that Sunday morning but he declined to do so. When she came back to the house after church, she smelled marijuana. This upset her. She seems to have reached a tipping point that day in her simmering dispute with her son on the subject. She asked to see inside her son’s backpack and he refused. She told him that if he did not allow her to look inside, he would be in trouble. He did not relent.

[23] As mentioned, this was not the first time Mr. Tewolde would not allow his mother to see inside the bag. While she cannot now remember if his eyes were red that day, things had been building and she had noticed that colour in his eyes on previous occasions at least. His refusal to show her the contents of the bag made her quite angry. Indeed, she said that it made her “crazy”. She decided that she had to do something. She wanted to discipline her son. Her main concern was her son’s health situation because he “was sick all the time”. She was afraid she might lose him. She decided that the thing to do was to find a policeman. She considered and rejected the idea of calling 911 to ask for police to come because she feared her son be gone before they would get there.

[24] Without telling anyone where she was going, Ms. Araya left the house in her car to look for a policeman. Her silent prayer was swiftly answered. She drove for only a few minutes when she happened upon Police Constable Simpson who, along with his partner, was in the process of wrapping up their attendance on an unrelated call.

[25] Officer Simpson and his escort that day, D.C. Perez Diaz, were both in full uniform. Ms. Araya pulled her car up in front of their marked squad car and she proceeded to exit her vehicle and speak to Officer Simpson. D.C. Perez Diaz observed what followed but was not within hearing distance. Ms. Araya does not recall even noticing his presence but she agreed that she was quite upset at the time.

[26] Officer Simpson and Ms. Araya have slightly different accounts of their initial meeting but the gist is substantially the same. Ms. Araya said that she told Mr. Simpson that she was worried about her son and wanted Officer Simpson to discipline him. She mentioned that her son’s eyes were red and he would not open his bag and that she wanted to open it. She asked him to come with her. Officer Simpson appeared a nice man to her and agreed to come with her. He told her to drive there and he would follow.

[27] Officer Simpson remembered that Ms. Araya wanted police to talk to her son. She told him that he had been smoking marijuana. He had gotten into some trouble before and promised her that he would be good but was not behaving now. She appeared frantic to him. She mentioned a backpack that he was very protective of. Her son was taking a shower and she wanted police to come talk to him before he left. She seemed to him to be in a hurry and anxious that police should talk to her son before he left.

[28] Officer Simpson agreed to follow Ms. Araya to the home and she gave him the address. He returned to the car and asked D.C. Perez Diaz – who was driving – to follow Ms. Araya to the address indicated. They did so.

[29] Officer Simpson made no mention in his testimony of being asked to “discipline” Mr. Tewolde. Ms. Araya did not mention this detail in the statement she gave police the day of the incident. She first mentioned this idea on the stand before me.

[30] I find that Ms. Araya approached Officer Simpson on her own and did so with the intent of asking him to come back to the home to support her. She strongly suspected that her son had marijuana in his backpack and she wanted the police with her when she confronted him again. She wanted to search the backpack and confirm her suspicion. She doubtless hoped that the police presence and a stern lecture from Officer Simpson would be sobering and help her son to see sense and stay away from marijuana.

[31] For his part, Officer Simpson expected that he was being asked to mediate in a family dispute between a mother and her son. There was nothing at all unusual in the request made – this is something he was used to doing in the community from time to time for youths and for young adults. The only unusual feature was that Ms. Araya had gone to look for a police officer and asked him to follow her home.

[32] It is to be noted that – to this point at least – Ms. Araya was the one taking the initiative and giving directions. Officer Simpson agreed to follow her request. In the circumstances, it is reasonable to infer that she may have expected that with Officer Simpson present, her son would not refuse to let her see inside the bag as he had earlier that day. However, she did not ask Officer Simpson to search the bag himself and he did not come along with that intention or understanding.

[33] Officer Simpson communicated the gist of what he learned to his escort D.C. Perez Diaz. I have no hesitation in finding that neither officer had any reason to believe that they were going to investigate a crime or make an arrest. Ms. Araya had sought them out and they were following her back to the home to help mediate a family dispute involving marijuana and a son who was not listening to his mother.

[34] Ms. Araya drove away and led the police car driven by D.C. Perez Diaz back to the family home. She parked in the driveway. The squad car pulled in behind her – whether on the street or partially in the driveway is of no consequence. The police officers noted the time of their arrival at the house: 4:06 p.m.

[35] Ms. Araya testified that she got out of the car and went straight into the house without exchanging any further words with Officer Simpson who simply followed her. She did not notice D.C. Perez Diaz at all. She said that the door was unlocked and she opened it and went inside, Officer Simpson following her with no words being exchanged. She also emphasized how emotional she was at this time. She saw her daughter, her nephew and Daniel downstairs but did not talk to any of them, proceeding directly upstairs towards her son’s room without saying anything.

[36] Officer Simpson testified that Ms. Araya spoke to both of them after they got out of their vehicles and voiced what he understood to be a concern that her son might leave by the side or rear doors. She asked him to follow her, saying “come” or words to that effect. He also said that it was a hot summer afternoon and the front door to the house was open when they arrived.

[37] Officer Simpson recalled that Ms. Araya conversed briefly with the three people (one adult and two teens) on the ground floor in a foreign language before proceeding upstairs after one of the teens directed her. Ms. Araya – who admitted to being quite distraught at the time – remembered only going straight upstairs.

[38] It is apparent from the foregoing that there are a number of minor differences between the account of Officer Simpson and Ms. Araya regarding their arrival at the premises and his entry into the house. Mr. Araya’s lack of memory of peripheral details is entirely understandable in the circumstances. I accept Officer Simpson’s more objective and detailed evidence.

[39] D.C. Perez Diaz proceeded to walk around the side of the house and then to the back door. He testified that he went around the side and rear to see if Mr. Tewolde was there but did not check either of the doors. Encountering nobody, D.C. Perez Diaz returned to the front and entered the house through the still-open front door to rejoin Officer Simpson. He could hear voices upstairs, primarily that of Ms. Araya, and went upstairs where he found Officer Simpson. He did not notice anyone on the main floor when he entered.

[40] I find that Officer Simpson was explicitly invited into the home by Ms. Araya and that her invitation implicitly applied to D.C. Perez Diaz who was with him. Ms. Araya appeared to both officers in all respects to be the adult in control of the house.

[41] Ms. Araya proceeded up the stairs and indicated that Officer Simpson should follow. He did so a few steps behind her. At the top of the stairs, she saw her son standing in the doorway of his room.

[42] The accused shared a bedroom with his 17 year old brother Nathaniel on the second floor. It was the closest bedroom to the top of the staircase, two more bedrooms being further down the hallway. A bathroom lay immediately opposite the top of the stairway.

[43] As Officer Simpson’s head arrived at the level of the second floor, he saw a tall young man holding a grey backpack in his left hand just inside the boys’ room. Officer Simpson did not then know which room was occupied by which member of the family. Ms. Araya does not remember noticing the backpack in Mr. Tewolde’s hand at this point or indeed at any time until just before she picked it up to empty it out a few minutes later.

[44] Over the next few moments, the following occurred in substantially the order indicated:

a. Mr. Tewolde noticed Officer Simpson and said that he would apologize and was only smoking marijuana;

b. Mr. Tewolde and his mother went into the bedroom, Officer Simpson followed but stopped at or about the threshold of the room whose door was still open;

c. Ms. Araya took the backpack from her son’s hands and placed it on Mr. Tewolde’s bed;

d. At or about this time, D.C. Perez Diaz came to the top of the stairs and witnessed the remaining events from behind Officer Simpson – Ms. Araya eventually noticed him but does not recall when she did so;

e. Mother and son sat on the other bed (identified as belonging to Nathaniel) and Mr. Tewolde tearfully asked for his mother’s forgiveness;

f. Some or all of the conversation between mother and son was in their native language Tigrinya;

g. Unable to understand Tigrinya, Officer Simpson decided that for his own safety he needed to ask both of them to speak in English and made that request;

h. After this this request, Mr. Tewolde continued to speak to his mother in a whisper – he appeared tearful and upset; Ms. Araya was also still upset;

i. Ms. Araya went over to her son’s bed and picked up the backpack, asking Officer Simpson if she could look inside. He told her that he could not tell her what to do and that it was up to her;

j. Ms. Araya then opened the top of the backpack and a strong odour of marijuana emerged;

k. Ms. Araya then proceeded to dump the contents of the bag out on the surface of her son’s bed;

l. The contents that fell out were clearly visible to both police officers and included a number of shrink-wrapped small storage bags containing what appeared to be marijuana, some smaller baggies, elastics, a digital scale, a grinder, some other baggies tied up, a cell phone, black plastic gloves and a plastic bowl;

m. After these items were dumped out of the backpack, Ms. Araya left the room in a state of great distress and Officer Simpson followed her to reassure and comfort her;

n. D.C. Perez Diaz was left alone in the room with Mr. Tewolde at this point. Mr. Tewolde was visibly upset. P.C. Perez Diaz proceeded to advise Mr. Tewolde that he was under arrest for trafficking. He noted the time as 4:12 p.m.;

o. D.C. Perez Diaz did not proceed to handcuff Mr. Tewolde immediately, deciding it to be more prudent from a safety standpoint to await the return of Officer Simpson;

p. After a short interval Officer Simpson returned and assisted D.C. Perez by applying handcuffs to Mr. Tewolde. While he was in the process of doing so, D.C. Perez began to pat down the accused. He lifted the hoodie Mr. Tewolde was wearing and discovered a handgun in Mr. Tewolde’s waistband;

q. D.C. Perez Diaz yelled “gun” and proceeded to seize and render safe the gun while Officer Simpson completed the handcuffing of Mr. Tewolde. Mr. Tewolde, while emotional and upset, remained compliant throughout;

r. The gun was later found to be a 9 mm Beretta handgun with a chambered round and a magasine containing a further nine rounds of ammunition;

s. The search of Mr. Tewolde continued and a further cell phone, $867 cash in a wallet and a gold-coloured switchblade measuring approximately 9 inches when extended was discovered and seized;

t. Mr. Tewolde was taken down to the squad car by both officers and the items seized during the search of Mr. Tewolde as well as the backpack and its contents were stowed in the squad car as well; and

u. Mr. Tewolde was read his rights to counsel at 4:24 p.m. – Mr. Tewolde made no statements between the time he was placed under arrest at 4:12 p.m. and when he was advised of his right to counsel 12 minutes later.

[45] The foregoing summary of the important events is derived primarily from the testimony of the two police officers. As indicated, I found their evidence credible, consistent with Ms. Araya’s evidence about why she brought them there in the first place and it withstood intense cross-examination without material damage. Ms. Araya’s account of these same events was materially different and, as I have indicated, I found it unreliable and could not accept it.

[46] By way of short summary, Ms. Araya’s testimony included the following elements that I have not accepted:

a. Officer Simpson is alleged to have asked Ms. Araya if the man he saw at the top of the stairs was the son she had mentioned. After confirming this with her, he is alleged to have proceeded to ask Mr. Tewolde for his identification which the latter allegedly produced without objection. I do not reject this evidence so much as I cannot accept the matter as proved. Ms. Araya made no mention of it in her recorded statement to police and neither police officer was asked about this detail. It is the sort of thing that would very likely have been in his notes and, if in his notes, he would almost certainly have mentioned it when testifying. He was given no opportunity to consider the suggestion. I have previously indicated my reasons for approaching Ms. Araya’s credibility with caution;

b. Ms. Araya suggested that Officer Simpson was the one who raised the subject of searching the bag in the bedroom and did so in an imperative manner, issuing a command that she open it. This command was allegedly repeated a second time but in a loud voice when Ms. Araya appeared not to hear or react to the first command. As I have noted, Ms. Araya always intended to search the bag and brought Officer Simpson with her with the intention of doing so. Her evidence of this alleged command struck me as being the product of ardent wishing fueled by hindsight. The events as described by the both officers are fully consistent with Ms. Araya’s original reason for bringing police there and she failed to explain or even clearly allege an actual change of heart in a convincing manner. As between an only partially-suggested and ill-explained change of her original intention while talking to her son in the moment or a subsequent tainting or distortion of her memory of events under the influence of all that followed her emptying of the bag, I cannot find the former prospect to be a probable one in light of all of the other evidence including that of the officers present. Once again, this is an element of her testimony that I was not able to accept at face value;

c. Ms. Araya also alleged that having opened the bag, it was Officer Simpson who commanded her to empty its contents on to the bed- evidence that I have also rejected (see my comments above);

d. Ms. Araya denied that Officer Simpson followed her when she left the bedroom and spoke to her downstairs. There is simply no other reason for Officer Simpson to have left his partner alone in the bedroom at that instant with an arrest imminent after the bag was emptied. It is quite conceivable that her emotional state was such that she simply did not record that detail. At all events I cannot accept as credible her denial of this innocuous fact.

Issues to be decided

[47] The defence application alleges that the warrantless search of Mr. Tewolde’s sealed backpack and his person were undertaken while he was being detained and at the direction of police. These actions are alleged to amount to breaches of ss. 7, 8, and 9 of the Charter. As the argument developed, it became clear that the applicant’s s. 7 arguments were effectively subsumed in his ss. 8 and 9 arguments. The applicant also alleges that the 12 minute delay in informing the accused of his right to counsel violated his s. 10(b) Charter rights.

[48] The relief sought for all of these alleged Charter breaches is an exclusion of the evidence of the search of the bag and the firearm pursuant to s. 24(2) of the Charter.

[49] I have divided the issues raised into the following questions:

a. Was the search of Mr. Tewolde’s bag an unreasonable search and seizure contrary to s. 8 of the Charter and in particular:

i. Did Ms. Araya act as an agent of police when she opened Mr. Tewolde’s backpack and emptied its contents on the bed?

ii. Were police lawfully in Mr. Tewolde’s bedroom or on its threshold prior to the backpack being opened?

b. Was Mr. Tewolde detained at any time prior to his bag being opened by Ms. Araya?

c. Did the 12 minute delay in informing Mr. Tewolde of his rights to counsel after his arrest breach his s. 10(b) Charter rights?

d. If any of the foregoing actions resulted in breaches of Mr. Tewolde’s Charter rights, what remedy is appropriate?

Discussion and analysis

(a) Was the search of Mr. Tewolde’s bag an unreasonable search and seizure contrary to s. 8 of the Charter?

[50] The facts presented on this case raise two issues concerning the legality of the search of Mr. Tewolde’s backpack. The police were present either in his bedroom or on the threshold of his bedroom. They were certainly inside the private residence where he lived. I shall consider below whether it can be said that the manner in which the police acted and were perceived to be acting amounted to a psychological (or actual) detention of Mr. Tewolde. At this stage of the analysis, I am concerned with the legality of the search that was conducted inside Mr. Tewolde’s bedroom.

[51] It is admitted that the search of Mr. Tewolde’s backpack was conducted without a warrant. Warrantless searches are of course presumptively unlawful when conducted by the state. It is common ground in this case that the physical search of Mr. Tewolde’s backpack was performed by Ms. Araya in the presence of two police officers. Police then seized the evidence that Ms. Araya’s search put into plain sight before their eyes. The location of the search – Mr. Tewolde’s bedroom – is also common ground. I have found that Ms. Araya initially acquired possession of the backpack when she took it from her son’s hand as he was in the process of leaving his bedroom.

[52] The Crown concedes that Mr. Tewolde had a reasonable expectation of privacy in the contents of his backpack as well as more generally in his own home and in his own bedroom. The unusual set of circumstances attending this particular search and seizure thus requires me to consider whether Ms. Araya’s actions in opening the backpack and dumping its contents on to the bed may be attributed to the state as state actions potentially triggering Charter consequences and whether police were lawfully in place when they witnessed the opening of the bag and seized its contents.

(i) Did Ms. Araya act as an agent of police when she opened Mr. Tewolde’s backpack and emptied its contents on the bed?

[53] The leading case on the question of when the actions of a private individual can be attributed to the state on the basis of agency is the case of R. v. M. (M.R.), [1998] 3 SCR 393, 1998 CanLII 770 (SCC). In R. v. M. (M.R.), the court considered whether the vice-principal of a school was acting as agent of police in searching two students in his office in the presence of an identified police officer. Cory J. found (at para. 28) that “the mere fact that there was cooperation between the vice-principal and the police and that an officer was present during the search is not sufficient to indicate that the vice-principal was acting as an agent of police”, noting that there was no evidence of an agreement or of police instructions to the vice-principal that could create an agency relationship.

[54] In the present case, I have found that Ms. Araya was not acting as an agent in fact of the police. It was she who sought out police and she did so having already determined that she was going to search her son’s bag. The decision was hers and hers alone. In contrast to R. v. M. (M.R.), there was no expectation, whether on the part of the police or of Ms. Araya, that police involvement would lead to criminal charges. The authority being asserted when Ms. Araya took control of Mr. Tewolde’s backpack and emptied its contents on to the bed was that of a mother dealing with her own son in the family home. Police were there as mediators at her request (not theirs) and not as criminal investigators.

[55] In reaching this conclusion, I cannot speculate about the degree to which Ms. Araya hoped that the mute police presence might persuade her son to yield to her parental authority. It is indeed difficult to imagine that such an expectation did not play at least some role in her planning. However, her unstated expectations or even her son’s subjective impressions of the situation (were there evidence of his impressions – and there is none) cannot turn the situation into the opposite of what it was in fact. Police were there at the invitation of and on the initiative of Ms. Araya to speak to her son after she did what she fully planned to do. It was not the coercive power of the state being applied when the bag was opened and its contents emptied but the moral authority of a mother over her adult son within the confines of the family home while he yet resided under its roof and remained a dependent.

(ii) Were police lawfully in Mr. Tewolde’s bedroom or on its threshold prior to the backpack being opened?

[56] Section 489(2) of the Criminal Code authorizes a peace officer “who is lawfully present in a place … in the execution of duties” to seize without a warrant any thing reasonably believed to have been obtained in the commission of an offence, used in the commission of an offence or will afford evidence of the commission of an offence.

[57] The contents of Mr. Tewolde’s backpack included items believed on reasonable grounds to constitute evidence of an offence. Can it be concluded on the evidence that Officer Simpson and D.C. Perez Diaz were “lawfully in a place … in the execution of duties” when they came to see these items? In my view it can.

[58] I have found that Ms. Araya was clothed with both apparent and actual authority to be present in the family home and to invite others, including police, into the home. Her writ, if I may borrow that phrase, was not limited to the “common areas”. The bedroom of the accused was a shared bedroom, shared by the accused and his younger brother. There is no suggestion in the evidence that Ms. Araya was excluded from the bedroom of her children. To the contrary, there is evidence that Ms. Araya made her childrens’ beds from time to time. She had the run of the house and had every right to ask police to come to her assistance to mediate what appeared to be a reasonably routine family dispute.

[59] In my view, the location of the search within the residence is at all events something of a red herring. Ms. Araya would have wished to have had the conversation with her son downstairs. Ten or fifteen seconds later, she would have had her wish because her son was leaving the bedroom with the backpack in his hands when she came up the stairs. They might have continued downstairs. It so happens that she chose to enter the bedroom and place the bag on his bed instead.

[60] The defence refers to the concurring decision of Moldaver J. in R. v. Reeves, 2018 SCC 56 to suggest that the entry of police into the house and especially into Mr. Tewolde’s bedroom may have been unlawful. With all due respect, I cannot agree. However, his concurring decision may be described, Moldaver J.’s lengthy consideration of the legality of the police entry in Reeves was not framed as a comprehensive review of all possible instances of lawful police entry into a home. His reasons examined the question of criminal investigations generally and the common law power of police to enter a shared residence to take a statement in particular. Neither of those considerations are applicable in the present case. Police were not wearing their criminal investigator hat.

[61] There was no criminal investigation underway when police entered the home nor was any statement being taken from a witness. They entered the home in their capacity as community peace officers assisting in mediating a family dispute. They were not intending to take a statement or to investigate a crime. They were intending to assist a mother who wished to communicate a serious message to her son. They did not interfere with the liberty of Mr. Tewolde or exceed their original purpose until the point where the visual evidence before them satisfied the conditions of s. 489(2) of the Criminal Code. The invitation of Ms. Araya was not revoked nor did police linger longer than required to accomplish their purpose.

(iii) Conclusion re: s. 8

[62] In conclusion, I am rejecting the application as regards the alleged breaches of s. 8 of the Charter. Police were lawfully present in the house at the invitation of Ms. Araya and standing in the doorway to Mr. Tewolde’s bedroom while she herself was inside. Ms. Araya was acting at all times in her capacity as mother of the accused and not agent of the police. She did precisely what she set out to do when she left the house to look for a police officer and her actions were neither controlled nor directed by the police. Police were lawfully present on the premises when the visible contents of the bag provided the grounds necessary to seize such contents pursuant to s. 489(2) of the Criminal Code and to place Mr. Tewolde under arrest as was done. The subsequent search of Mr. Tewolde was thus incident to a lawful arrest.

[63] Mr. Tewolde’s rights under s. 8 of the Charter were not violated by the search of the bag, the seizure of its contents or the search of Mr. Tewolde’s person incidental to his arrest.

(b) Was Mr. Tewolde detained at any time prior to his bag being opened by Ms. Araya?

[64] The applicant submitted that Mr. Tewolde was in fact detained by police prior to his backpack being opened and that such detention was unlawful. The Crown candidly conceded that there existed no grounds to arrest or detain Mr. Tewolde up until the time that the contents of his backpack were spilled out upon the bed. If I find that he was detained prior to that time, then if follows that his detention was an unlawful one and a breach of his s. 9 rights will have been established.

[65] The applicant submitted that the entire house was effectively detained by police, pointing to the actions of D.C. Perez Diaz in checking the side and rear of the house upon arrival prior to proceeding up the stairs.

[66] The point was not vigorously pressed and can be readily dealt with. D.C. Perez Diaz did not find or detain anyone at the side or rear of the house – there was nobody there. There is no evidence that a single person even noticed him undertake that quick check before he followed Officer Simpson and Ms. Araya into the house.

[67] There is similarly no evidence that the accused was aware of D.C. Perez Diaz before the latter came up the stairs and came into view outside of the bedroom door. His actions prior to that time may be relevant to understanding his own subjective intent (or, to a degree, that of Officer Simpson) but they can shed no light on the subjective understanding of the accused who was quite entirely ignorant of his presence at the scene until then.

[68] D.C. Perez Diaz’ actions are consistent with and explained by his evidence that he wanted to see if Mr. Tewolde was at the rear of the house because his mother very much wanted to talk to him and was concerned that he would leave. He certainly knew at that time that he had no lawful authority to detain Mr. Tewolde. However, it is quite reasonable to infer that he might at least have attempted to persuade Mr. Tewolde to wait for his mother to come outside to have the discussion she had brought the police with her to have. D.C. Perez Diaz was as entitled to make the case to Mr. Tewolde that he should hear his mother out as Mr. Tewolde was to reject it and walk away.

[69] I turn now to the aspect of the s. 9 Charter claim pressed most vigorously by the defence, namely that Mr. Tewolde was subject to an unlawful detention at the point where he retreated into his bedroom after the arrival of his mother and Officer Simpson.

[70] In all the circumstances, the defence contends that Mr. Tewolde was detained in fact, being put in a position where he had no practical opportunity to leave or to shut the door and exclude the police from his conversation with his mother. The room was a small one, its relatively small dimensions being largely occupied by the two beds and associated furniture it contained. First one and then a second uniformed officer was physically obstructing the door and the hallway leading to the stairs. The circumstances were, the defence suggests, self-evidently intimidating and left Mr. Tewolde with little practical choice but to submit to the search that ensued. In advancing this argument, the defence relied quite heavily upon the very recent case of R. v. Le, 2019 SCC 24.

[71] In Le, three police officers entered the back yard of a residence and proceeded to “card” the young men found there. It was found that the police had entered the back yard as trespassers and by their aggressive actions and language showed that they were taking control of the situation as it unfolded. Their proximity and positioning appeared to be such as to block exit. The entire picture conveyed a show of force. From the perspective of the individuals being questioned, the police did not explain the reason for their presence – the circumstances did not suggest a routine encounter to assist or to maintain public order. They reasonably felt detained at that time and there was no legal justification for the detention.

[72] A state of detention may exist absent a legal obligation to comply with a police demand or absent a physical restraint by the state where “a reasonable person in the accused’s shoes would feel obligated to comply with a police direction or demand and that they are not free to leave”: Le at para. 26 (emphasis added). To determine whether and when detention arose, the Court in Le applied the three factors to be assessed as discussed in R. v. Grant, 2009 SCC 32 being (i) the circumstances giving rise to the encounter as they would reasonably be perceived by the individual; (ii) the nature of the police conduct and (iii) the characteristics of the individual where relevant.

[73] As regards the first Grant criterion, there is but little evidence to go by in assessing the circumstances of the encounter from the perspective of Mr. Tewolde. He offered no evidence regarding his own subjective view of events. The three witnesses who did testify described Mr. Tewolde as being quite emotional during the encounter, but this evidence is quite equivocal as to what degree of intimidation if any that Mr. Tewolde experienced that can be attributed to the presence of police or the degree to which his emotional state can be attributed to his mother and her actions. It was to his mother that Mr. Tewolde offered tearful apologies and into whose ear he spoke quietly in Tigrinya. Her presence in those circumstances underscored the degree of her disapproval of his actions earlier in the day and of her resolve to discipline him. I find that latter consideration to have been the dominant driver of his observed reactions.

[74] Turning to the nature of the police conduct during the encounter, I have found that the police played the largely passive role of observer throughout. Officer Simpson’s sole “command” was a request that mother and son speak in English so he could understand them. It was a request quite reasonably made for his own security and one that appears to have been ignored in whole or in part by both. Neither officer took steps to assert control of the situation. It was Ms. Araya who entered the room and took Mr. Tewolde’s backpack from him. It was she who spoke to him and to whom he spoke.

[75] There is insufficient evidence of the characteristics of Mr. Tewolde to engage in more than a very shallow consideration of the third Grant criterion. While Ms. Araya testified that, as an Eritrean, she was herself somewhat fearful of police, there is not enough evidence for me to conclude that her son has had life experiences similar to hers or that made him particularly vulnerable when interacting with police. At all events, Ms. Araya’s fear of police was not such as to deter her from getting in her car and looking for them that afternoon and the officer she chose to talk to (Officer Simpson) was one whom she described as “black, like me” and one who appeared to her to be “very nice”.

[76] The encounter that took place was fundamentally an encounter between a mother and her son between whom there was a pre-existing level of conflict. Police were there to observe and mediate, not to control and direct. Their actions did not depart from that limited role until after the bag was opened.

[77] The fact that members of the population will naturally tend to approach interactions with uniformed police officers with a degree of respect or even apprehension does not transform every such interaction into a detention. Doubtless the presence of police informed or even modified Mr. Tewolde’s reaction to his mother, but he was reacting to her and the initiative during the encounter was hers throughout.

(i) Conclusion re s. 9

[78] For the foregoing reasons, I find that Mr. Tewolde was not the object of an actual or psychological detention prior to the time the contents of his backpack were emptied on to the bed by his mother.

(c) Did the 12 minute delay in informing Mr. Tewolde of his rights to counsel breach his s. 10(b) Charter rights

[79] I find no merit in the allegation of a breach of s. 10(b) of the Charter by reason of the 12 minute gap between arresting Mr. Tewolde and advising him of his rights to counsel as prescribed by s. 10(b) of the Charter.

[80] There is of course no dispute that the obligation of police to advise a detained accused of those rights is an important one and one that must be discharged immediately after an arrest is made. The immediate discharge of this obligation is however subject to legitimate concerns for officer safety: R. v. Suberu 2009 SCC 33 at para. 42.

[81] Immediately after the backpack was emptied, Ms. Araya left the bedroom followed by Officer Simpson. D.C. Perez Diaz found himself alone in a room with the accused in the presence of clear evidence of trafficking. His decision to await the return of his partner before proceeding to search and handcuff the accused was motivated by reasonable concerns for his own safety in those circumstances. He could not be certain of being able to maintain control of the situation on his own and prudence dictated a short delay.

[82] Upon the return of Officer Simpson, the almost immediate discovery of a loaded gun introduced another element of legitimate concern for officer safety and, undoubtedly, distraction. The gun had to be rendered safe and the accused properly restrained with handcuffs. While it would have been preferable to have proceeded to advise Mr. Tewolde of his rights immediately thereafter, the fact that this was not done for a few more minutes after the items seized had been removed from the scene and Mr. Tewolde taken outside of the house is understandable in all of the circumstances if not ideal. The decision was made to get him and the gun out of the house and into the squad car as soon as possible before resuming the routine of an arrest. It was not a perfect sequence of events but such things need to be viewed reasonably in the light of the events as they occurred and not in the artificial light of hindsight. The delay was minor and reasonable in those circumstances.

[83] There was at all events no actual prejudice arising during the short interval between the gun having been rendered safe in the upstairs bedroom and Mr. Tewolde having been led down the stairs and into the squad car. No statements were made or sought. I find that Mr. Tewolde was provided with his 10(b) Charter rights without delay having regard to reasonable concerns of officer safety.

(d) If any of the foregoing actions resulted in breaches of Mr. Tewolde’s Charter rights, what remedy is appropriate?

[84] I have not found that Mr. Tewolde was detained nor have I found that the search and seizure of the contents of his backpack entailed a breach of his rights under s. 8 or s. 9 of the Charter. I have also concluded that the 12 minute delay between the arrest and detention of the accused and the reading of his legal rights did not amount to a breach of his rights pursuant to s. 10(b) of the Charter. In these circumstances, I shall engage in only a high-level survey of the s. 24(2) Charter analysis that arises were I to have concluded otherwise.

[85] The analysis required to be undertaken before excluding otherwise admissible evidence from a criminal trial pursuant to s. 24(2) of the Charter was recently reviewed by the Supreme Court of Canada in the case of R. v. Omar, 2019 SCC 32. In Omar, the majority of the Supreme Court endorsed the dissenting opinion of Brown J.A. (at 2018 ONCA 975 and restored the decision of the trial judge. The principal issue on the appeal was s. 24(2) and whether the subject evidence ought to have been excluded in light of a Charter breach.

[86] The three Grant criteria to be reviewed are by now well-known. The court must review (i) the seriousness of the Charter-infringing state conduct; (ii) the impact of the breach upon the accused; and (iii) society’s interest in an adjudication on the merits. The devil is always in the detail and from almost the moment the Charter came into force as a core element of Canadian law, the balance between these three criteria as they have been expressed down the years has been a legal battleground.

[87] The Supreme Court in Omar re-affirmed that a balanced approach is required. The test formulated in Grant was intended as a reaction to a formulaic and quasi-automatic approach to the matter of the exclusion of evidence in the face of a Charter breach. What is required is an “in all the circumstances” approach where there is no single governing or overarching rule: Omar at ONCA para. 112.

[88] It is clear that the alleged breach of the s. 10(b) rights of the accused arising from the 12 minute delay in reading him his rights moves the needle very little in the direction of exclusion. The legitimate concerns for officer safety and the necessity (and distraction) of dealing with an unexpected loaded revolver have been viewed by me through a real-life lens. As important as the s. 10(b) rights are, it is hard to imagine how any actual prejudice to the interests of the accused occurred in that brief interval (where no statements were made by the accused) while the good faith of the police reacting to an unexpected situation and the acute interest of society in prosecuting gun crimes are both plain and obvious.

[89] The analysis becomes more nuanced as one considers the ss. 8 and s. 9 Charter breaches alleged. It is here where the interplay between the first and third Grant factors requires a more careful and deliberate approach as the impact upon the Charter rights of the accused is clearly of a more material nature. If the search was unlawful or police had no right to be there to witness it, the evidence would never have been discovered. Here, there can be no doubt that the second Grant factor strongly argues in favour of exclusion of the fruit of breaches of fundamental Charter rights.

[90] However, a consideration of the first and third Grant factors strongly leans against exclusion of the evidence in question.

[91] At its core, this was a benign situation that turned into a criminal investigation essentially without warning. Even were I to attribute Ms. Araya’s expectation of finding marijuana inside the bag to police – and I think it reasonable to do so – I cannot find that that technical illegality elevated the situation to a criminal investigation from the outset. Ms. Araya would not have brought police back to the house had she thought her son risked arrest for simple possession of cannabis and Officer Simpson did not accompany her to pursue such an investigation. There was no reason to suspect guns or evidence of trafficking and both discoveries came as a complete surprise to all save Mr. Tewolde. It was that discovery that started a criminal investigation that did not exist until then. Police were not investigating – and would not have pursued – an investigation of simple possession of a substance that was weeks away from being legalized. That argument is, in my view, a straw man.

[92] It is also to be noted that, to the extent there is an emerging appellate court consensus regarding the search and seizure authority of police inside a private dwelling, one must be wary of being too rigid in the application of hindsight reasoning when assessing the seriousness of Charter-infringing police conduct. The Supreme Court of Canada decision in Reeves emerged more than four months after the incidents at issue in this case while Le followed five months after Reeves. Both Supreme Court of Canada decisions reversed prior decisions of the Ontario Court of Appeal. Common sense suggests that police on the street cannot reasonably be held to a higher standard of correctness in interpreting the Charter than the Court of Appeal of the province in which they were operating at the time.

[93] The facts that I have found in this case strongly support an inference that the conduct of police in entering the home upon the invitation of Ms. Araya was in good faith. There was no callous or deliberate disregard of Charter rights that a reasonably well-trained peace officer ought to have been able to avoid based on the law as it was then widely understood and applied. Exclusion of the evidence obtained in this case cannot be characterized as a necessary evil to be endured in order to prevent the progressive erosion of our collective Constitutional guarantees. Exclusion cannot be viewed as a sort of prize awarded to the litigant whose arguments helped shape that emerging consensus either. The Grant analysis requires a balanced assessment of all of the circumstances.

[94] Over time, the task of our courts is to inject ever brighter lines into the murky and often grey areas governing the conduct of police when interacting with the citizenry of a free nation. Tomorrow’s bright lines may be no more than dimly-perceived outlines today. As our collective understanding crystallizes under the influence of evolving jurisprudence, police conduct is expected to evolve in consequence, not in anticipation. Where it fails to evolve, the case for s. 24(2) exclusion grows progressively stronger.

[95] A balanced s. 24(2) Charter analysis requires a healthy and realistic understanding of the practical realities on the ground in applying what must objectively be described as still-evolving rules. In Omar, the Supreme Court endorsed Brown J.A.’s recognition of what he termed the “street-level uncertainty” of the emerging jurisprudence on the subject of what constitutes psychological detention.

[96] The Charter’s guarantees are not threatened with erosion by a prospective approach to the s. 24(2) analysis. Indeed, the Charter would be weakened were it to become perceived by its beneficiaries as an arbitrary minefield instead of as a bulwark preserving and protecting core social values.

Disposition

[97] For the foregoing reasons, I have dismissed the defence application and find that the contents of Mr. Tewolde’s backpack and the items found on Mr. Tewolde’s person when he was searched incidental to his arrest are all admissible into evidence at his trial. On the agreement of the parties, the evidence adduced at this voir dire is also part of the evidence at the trial. I shall render a separate verdict on the trial in light of this decision and the reasons given.

S.F. Dunphy J.

Date: October 15, 2019